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Dead man acquitted in Australian first

Isabel Hayes

Thirty-five years after he died a convicted murderer, NSW shearer Fred McDermott has become the first person in Australia to be acquitted of a crime posthumously.

Emotional scenes broke out in the NSW Court of Criminal Appeal on Wednesday after the three-judge panel, headed by Chief Justice Tom Bathurst, found Mr McDermott had suffered a "substantial miscarriage of justice" when he was convicted for the 1936 murder of William Lavers.

For Mr McDermott's second cousin, Betty Sheelah, from Armidale, the truth has been a long time coming.

"We always believed he was innocent," an emotional Ms Sheelah told reporters after the decision was handed down.

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"None of the McDermotts ever believed he was guilty ... today he is finally innocent."

Mr McDermott, an itinerant sheep shearer, was convicted of murder in 1947, more than ten years after Mr Lavers disappeared from his property at Glenelg, near Grenfell in the state's central west on September 5, 1936.

Mr McDermott was sentenced to death by hanging but his penalty was commuted to life imprisonment.

However, following Supreme and High Court appeals and a 1952 Royal Commission into his conviction, Mr McDermott was set free, though his conviction was never officially quashed.

He died in 1977 a "ruined" man, with the conviction hanging over his head, Ms Sheelah said.

Mr Lavers' remains were eventually discovered in a cave on a property near Grenfell in November 2004.

Tom Molomby, SC, representing Mr McDermott's family, told the court that there were several "unusual, almost freakish" features to Mr McDermott's trial that led to a miscarriage of justice.

On the day Mr Lavers disappeared, a woman named Essie King told police she saw two men in a car near the scene of the crime.

A noisy car linked to one of Mr McDermott's friends had also been heard near the Lavers property that morning.

Nine years later, Ms King identified Mr McDermott as one of those men from poorly-shot photographs, including one where Mr McDermott had his eyes closed.

"To identify someone even six months later or even six weeks later (based on that material) invites mockery," Mr Molomby said.

"The solemnity and formality of the court proceedings overbore common sense and buried it."

Other flawed evidence included witnesses who said Mr McDermott's de facto wife used to say he had killed Mr Lavers "for a drop of petrol".

But Mr McDermott was in fact taunted constantly by his wife and he would "parrot what she said as his best way of placating her", Mr Molomby said.

Mr Molomby said relatives of people who were convicted continued to suffer after they had died.

"If a person has died, it would seem not only unfair but cruel to close family and friends ... if the conviction could not be quashed," Mr Molomby said.

"The dead matter to the living."

The court heard the Crown was in agreement with Mr Molomby and after a brief adjournment, the judges returned with their decision to quash Mr McDermott's conviction.

"We are satisfied the court has jurisdiction to hear and determine the appeal, notwithstanding the death of Mr McDermott," Chief Justice Bathurst said.

The court room broke out in spontaneous applause after the decision was handed down.